This article is authored by Pragun Goyal, a first year student of NLU Delhi.
The Bihar Special Armed Police Bill 2021 has educed a motley of reactions from the denizens. The legislation aims to turn the Bihar Military Police into a well-trained and properly equipped armed police force capable of serving the state's development needs and broader interests. The Bihar Mahagathbandhan has branded the Bill "draconian," objecting to provisions such as authorizing Special Armed Police officers to perform searches and arrests without a warrant, as well as courts' right to take cognizance of certain offences committed by the officers only after gaining government approval. In Prakash Singh v. Union of India, the Supreme Court of India defined police in three aspects- autonomy, accountability and efficiency. The Bill somewhere or the other seems failing to slake the two foremost aspects of autonomy and accountability considering sections 4,7,8 and 9 and be looked inadvisably just on the basis of economic reasons and security of industrial establishments.
Desideratum for the Bill according to the Government
Presently, the Bihar Military Police has been entrusted with the security of vital installations like the Mahabodhi temple at Bodh Gaya and an Airport at Darbhanga. Bihar being a rapidly developing state, according to the government, needs security for industrial and security establishments. It’s sardonic that among all the states, Bihar ranks the lowest on the Human Development Index and has the lowest GDP per capita in India. There is a need for an empowered armed police force of the state to further strengthen internal security.
The government believes that the organised development of the armed police force of the state will reduce dependence on central armed police forces, thereby lessening economic burden and at the same time creating employment opportunities for local residents. The Bihar Military Police has evolved a distinct identity and work culture based on its duty framework and battalion based organisational structure during over a century of its illustrious existence. The government felt it necessary to retain its separate identity.
Before passing of the Bihar Police Act 2007, the district police used to be governed by the Police Act 1861 and the officials of Bihar Military Police were governed by the Bengal Military Police Act 1892. The Bihar Police Act 2007 mainly deals with the working of the District Police and the government felt it necessary to have a separate law for the efficacious working of the armed police.
Heft of the Bill
Section 3(1) of the bill mandates that the police shall be responsible for “maintenance of public order, combating extremism, ensuring the better protection and security of specified establishments in such manner as may be notified and perform such other duties, as may be notified”. Besides the renaming Bihar Military Police as Bihar Special Armed Police, section 18 stipulates that the general superintendence of the Special Armed Police shall be vested in and be exercised by the government. Section 4(2) further provides that the command, supervision and the administration of the Special Armed Police shall be vested in the Director General of Police. The knot here is that the Special Armed Police has been vested with powers to maintain ‘Public order’, which is itself the duty of the district police. The powers given under the guise of maintaining public order juxtaposed with the general superintendence by the government may lead to undesirous results. The term public order is very open ended as every breach of the peace does not lead to public disorder.[i] “Public order” is what the French call “ordre publique” and is something more than the ordinary maintenance of law and order. While the expression “law and order” is wider in scope inasmuch as contravention of law always affects order, “public order” has a narrower ambit and public order could be affected by only such contravention which affects the community or the public at large. Every infraction of law must necessarily affect order, but an act affecting law and order may not necessarily also affect public order.[ii]
The Bill mentions that the political executive (i.e., ministers) has the power of superintendence and control over the police forces to ensure their accountability. However, according to the Second Administrative Reforms Commission, this power has been abused, with ministers using police forces for personal and political gain. As a result, analysts have proposed that the political executive's power be restricted by statute.[iii]
The Bill further delegates that Special Armed forces can carry out searches and arrests without a warrant. This provision reminds us of the CISF Act 1968, under which the CISF can arrest people, including on suspicion, “without any warrant or order from the magistrate’. The issue is that these similar powers have already been explicitly given to the district police by the sections 41, 165 etc. of the Code of Criminal Procedure, 1973. However, the reasoning given by the government is that such powers of search and arrest without warrant to the Special Armed Police Officers are only for the purposes of security of notified premises.
Another provision which has created much hue and cry is that “No court shall take cognizance of any offence under this Act when the accused person is a special armed police officer except on a report in writing of the facts constituting such offence and with the previous sanction of an officer authorised by the Government in this behalf.” This provision is evocative of the Armed Forces Special Powers Act which is applicable in disturbed areas and is quoted as ‘feeding official paranoia and prolong’ because of its misuse.
The Bill seems to lack an efficacious mechanism to ensure accountability of the Bihar Special Armed Police considering provisions like arrest and search based on suspicion. The Supreme Court of India in State of Maharashtra v. Saeed Sohail Sheikh, stressed on accountability of the police and maintained that accountability is one of the facets of the Constitution of India. For example, there have been instances like the Bihar police stating that protesters will have a tough time obtaining visas, government employment, state financial aid, or even bank loans. In September 2020, the Bihar police officials at Adhaura block of Kaimur allegedly opened fire against the demonstrators on September 11 when they had tried to air their grievances over the violations of the Forest Rights Act. In Prakash Singh case, the Court had directed state governments to set up Police Complaints Authority which would oversee the functioning of police. States, including Bihar, still have not pursued this direction. In the backdrop of police brutality cases, giving sweeping powers to Bihar Special Armed Police is perilous. The Bill should incorporate accountability and autonomy and should not just be looked with the lens of economic and security reasons.
[i] (2004) 7 SCC 467 [ii] State of U.P. v. Sanjai Pratap Gupta, (2004) 8 SCC 591. [iii] Committee on Home Affairs”, Subjects selected by Standing Committees, PRS Legislative Research, Last visited August 17, 2016, http://www.prsindia.org/parliamenttrack/parliamentary-committees/subjects-selected-by-standing-committees-3451/.